Improbable Cause

Last week at the Committee to Protect Journalists' annual dinner, former New York Times executive editor Joe Lelyveld urged the media to take aim at president Bush's form of military justice.

While the CPJ's traditional mission is to defend foreign journalists who report on repressive governments, Lelyveld told some 800 colleagues that "the best way to support independent journalism abroad is to practice it ourselves."

Then Lelyveld suggested a good target for journalists' barbs: President Bush's decree of November 13, in which he created an Alice-in-Wonderland style of justice that would allow foreigners who are suspected terrorists and living in the U.S. to be prosecuted in secret military tribunals, without the usual constitutional rights. To be effective, said the Timesman, the media has to get beyond debating this stuff in the op-ed pages and actually find out what's going on.

The Times' lead editorial of November 21 reflected Lelyveld's view, directing sarcastic remarks at Attorney General John Ashcroft and his "dubious departures" from the Constitution. And the Times news editors fell in step on November 25, when they published a front-page investigation of Bush's New Legal Order, which alters "some basic principles of the American judicial system." But the Times is not the only source of activism: For two weeks, writers at the Voice and across the country have been carrying the torchfor civil liberties, as worthy a cause as it is improbable at a time when most pundits are busy proving their patriotism.

Joining the Times in the crusade to stop "secret justice" are The Washington Post, The Baltimore Sun, The Chicago Tribune, and Newsday, among others. Editorial writers have taken issue with almost every element of Bush's proposed system, to wit: Suspects can be detained without the public release of their names or the charges against them, they may not be allowed to choose their own attorneys, and when they do start talking to their appointed attorneys, those conversations can be wiretapped.

It won't matter much what happens in court, because the trials will be held in secret, with the resulting records locked up for years. Suspected terrorists can be convicted in part on the basis of hearsay and illegally obtained evidence, and their guilt does not have to be proved beyond a reasonable doubt. As soon as two-thirds of the military panelists reach a verdict, a death penalty can be imposed, with no judge available to hear their appeal.

If you're a journalist of the Lelyveld school, it's quite clear why secret tribunals should be anathema to all Americans. As Newsday has noted, the presumption of innocence is one of the bedrock principles of the U.S. justice system. So is the concept of an open trial, which allows citizens "to witness and participate in judicial procedures" and serves as "a check on totalitarianism," according to the Las Vegas Review-Journal. The Atlanta Journal and Constitution is urging the U.S. to remain an "open society," while The Baltimore Sun notes that the U.S. "has regularly criticized . . . Turkey and Peru . . . for trying suspected terrorists in secret courts," asking, "can we hold ourselves to a more lenient standard" and expect to be taken seriously?

Of course, not all pundits find the secret courts reprehensible, but then not everyone takes the U.S. legal system seriously. Defenders include the editorial-page editors of The Wall Street Journal, federal appeals court judge Richard Posner, Ed Koch, and George Will. The Will camp leans heavily on one legal argument: a 1942 Supreme Court decision called Ex Parte Quirin. Under pressure from FDR, the Court approved the secret prosecution of eight German saboteurs who had landed on U.S. soil disguised as civilians. The justification for a secret trial was that Quirin and company had subverted the laws of war, and some legal experts think the decision would be applicable today.

Other arguments put forth to promote secret justice are just weak re-runs from the drug war. It's OK to make exceptions to the Constitution, proponents say, because we're fighting a super-evil enemy, or because we want to protect our undercover sources. One of Bush's lamest excuses for dodging traditional U.S. courts is that terrorists do not deserve constitutional protections. Take this idea to its logical conclusion and you get Ed Koch's November 23 Newsday rant, in which he proposes giving terrorists "the option of . . . being punished under Sharia [the Islamic judicial system], which prescribes lashing, amputation, eye-gouging, stabbing, removal of body parts, stoning and decapitation."

The flip side of Koch's Rambo fantasy is the bully trick, which involves calling libertarians sissies. Thus, the British Home Secretary says that a world ruled by civil rights would be "airy-fairy," while George Will compares the liberty-loving editorial writers of The New York Times to "Southern belles suffering the vapors over a breach of etiquette."

If one thing is antithetical to the spirit of the Constitution, it's ironic detachment. On November 25 Maureen Dowd described the "supreme ambivalence" now being felt by her liberal colleagues, who would rather murmur praise for John Ashcroft than become defenders of civil liberties. ("What if I reached the conclusion that this is all terrible?" an anonymous editor told Dowd, describing the prevailing mind-set. "Would I have to start protesting in the streets?")

While the narcissists remain holed up in their bungalows, engaged journalists are storming the barricades to denounce the secret courts, which William Safire calls "Stalinist" and The Washington Times has dubbed "a tribunal too far." The Las Vegas Review-Journal argues that U.S. courts were good enough to convict Ted Kaczynski, Timothy McVeigh, and the 1993 World Trade Center bombers, while Anthony Lewis suggests that an international court would carry more credibility.

Cautious editorialists can always take the safe road, by using the "balancing act" that judges apply to square the competing principles of civil liberties and national security. But in the hands of opinion writers, balancing acts often turn into rhetorical exercises. Case in point: Charles Lane's November 25 Washington Post op-ed, in which he calls Bush's field day with civil liberties "quite defensible" compared to past offenses, and insists that a few constitutional breaches won't matter if this war eventually reaps a "net increase in freedom." Does Lane really believe that a democracy can justify its means with its ends?

Perhaps the best argument yet against the tribunals came from a foreigner, Israeli columnist Tom Segev. Writing in the November 25 Times, Segev pointed out that while Israel also uses secret tribunals, such limitations on civil liberties "have not made the country safer; they have made it more oppressive." Once introduced, he suggested, a totalitarian judicial system can be hell to dismantle.